Actually, while it can contractually require it, there may be legal barriers to such requirements that would void them in the contracts. If such a contractual requirement were to violate requirements under local law, that contractual requirement becomes unenforceable.

So contrary to your opinion, the answer to the question is clearly "No". ICANN cannot require the collection of data by parties that would violate their legal requirements in doing so.

Best,

Volker

Am 23.01.2017 um 18:45 schrieb Greg Aaron:

The question is not “Is ICANN a law enforcement body?’’  (Clearly it is not.)  The question is whether ICANN can require that data be collected and published in order to facilitate various legitimate goals.  The answer to that question is clearly “yes.”

 

ICANN’s Bylaws describe ICANN’s responsibilities and their scope – especially see Article 1, section 1, of ICANN’s Bylaws, entitled “Mission, Commitments and Core Values.”  (https://www.icann.org/resources/pages/governance/bylaws-en/#article1 )   Among other things, “ICANN's scope is to coordinate the development and implementation of policies: For which uniform or coordinated resolution is reasonably necessary to facilitate the openness, interoperability, resilience, security and/or stability of the DNS including, with respect to gTLD registrars and registries… functional and performance specifications for the provision of registrar services; registrar policies reasonably necessary to implement Consensus Policies relating to a gTLD registry;  resolution of disputes regarding the registration of domain names...  Examples of the above include, without limitation: …maintenance of and access to accurate and up-to-date information concerning registered names and name servers”.  

Years back it was decided that the collection and publication of the data was important for accomplishing some legitimate goals, in keeping with the above principles.  And since the old days there have been additional statements of note.  For example in 2007 the GAC weighed in recognizing a number of specific legitimate uses, including “facilitating inquiries and subsequent steps to conduct trademark clearances and help counter intellectual property infringement” and “contributing to user confidence in the Internet”, in keeping with law.  We’re reviewing all this now; just saying that there’s a lot of precedent, and proposals for chnage need to address precedent.

Currently there is an approach that’s important to mention.  The contracts say that registrars “shall permit use of data it provides in response to queries for any lawful purposes”. [Emphases added; and except for “mass unsolicited, commercial messages” i.e. spamming, and some high-volume queries.)   Access is not prohibited or regulated.  All use is allowed except when a use is specifically prohibited.   

The alternative is to enumerate all allowable uses  and to regulate access based on each user’s intent to honor those allowed uses.  And that takes the world to a place where a system must gatekeep all users, and parcel out data to them only after the assert or prove they have a legitimate use and that they will employ the data only for that  purpose.  IMHO that infringes upon the rights of legitimate users, and is also a completely unmanageable solution.

All best,

--Greg

 

 

 

 

From: gnso-rds-pdp-wg-bounces@icann.org [mailto:gnso-rds-pdp-wg-bounces@icann.org] On Behalf Of Kimpian Peter
Sent: Monday, January 23, 2017 8:53 AM
To: Stephanie Perrin <stephanie.perrin@mail.utoronto.ca>; gnso-rds-pdp-wg@icann.org
Subject: Re: [gnso-rds-pdp-wg] FW: Now open: 18 January Poll on Purpose

 

Dear All,

 

Adding to the purpose debate: usually it is common sense and wiedly reckognised that we don't collect personal data just for the sake of it or in bulk saying it will be good for one purpose or another. Usually data controllers have the obligation to say openly in advance this is why I am going to process (ie collect, agregate, transfer, etc.) personal data. Being said that it can not be excluded that those data will be used/accessed for "higher" common good and for the benefit for all by another athorised data controller. For example a telco company can if all conditions met disclose (!) data it previously collected to law enforcement agencies but this does not mean that the Telco compony can collect, process etc data for law enforcement purpose...

 

My simple question to start with would be and always was: Is ICANN a law enforcement body? Does ICANN have any power/competence in fighting against crime? And it goes for other purposes as well: Is ICANN an international trademark organisation? Etc...Is the answer given to those questions is shared by all the community of ICANN? In my sense we have to be sure that we answer first those questions before deciding on possible purposes (which does not mean that discloser of data on a case-by case base according to international legal requirements will not be possible after this, but those will be exceptions !!!)

 

Best regards,

 

Peter

2017.01.22. 19:20 keltezéssel, Stephanie Perrin írta:

I love your analogy Shane, it is perfect.  In data protection terms that would be a use.  For a legitimate purpose... sledding.  There might have to be repercussions if you cracked the lid....that might be a data breach:-)

I hate being a nit picker and calling out this distinction between purpose of collection as opposed to purpose for use and disclosure, but it is extremely important in terms of data protection.  Some laws are more clear than others on the distinction, and you are correct that if we are not careful DP laws will forbid the collection and disclosure of the data.  It is certainly clear that for collection of thin data, there is ample justification for collecting the info based on ICANN's limited mandate.  However adding law enforcement and other similar website related investigative activities to the list of legitimate purposes is in my view opening a barn door.  After a year of discussion we may understand the nuance, that we are talking about thin data, etc etc but when the fruits of our labours are published, it looks like we have all agreed that law enforcement (eg) is a legitimate purpose for collecting registration data.  In my view, it is not.

cheers Stephanie

 

On 2017-01-22 04:03, Shane Kerr wrote:

Greg,

If we can say that not all legitimate purposes have to be catered for,

then I agree with you. :)

If we say that tracking down the registrar of a domain as part of

trademark research is a legitimate purpose, that does not mean that we

have to design the system for this purpose, right?

To try an analogy: We can recognize that using the plastic top of a

garbage can as a sled is legitimate, but we don't insist on designing

lids with sledding in mind.

Full disclosure: My own take on the "legitimate purpose" discussion

with regards to "thin data" is that we need *some* purpose for both

gathering and publishing the information, because otherwise privacy

laws may prohibit companies from gathering or publishing it. Luckily I

think that there are so many such purposes that the need for the

information is indisputable.

Jumping ahead... as I said in a prior call (sorry for missing ones since

then), I would prefer that the information is then allowed for any

purpose, without restriction, because otherwise you have to have not

only tiresome rules about what is allowed but also the Internet Police

to enforce those rules, which seems like a step towards Armageddon.

Given that we're still talking about "thin data", which is basically

just a pointer to a registrar who has *actual* data, my own

recommendation is not to stress too much. This stuff is only very, very

vaguely personally identifiable.

Cheers,

--

Shane 

At 2017-01-21 14:51:29 -0500

Greg Shatan <gregshatanipc@gmail.com> wrote:

I have to disagree.  These are legitimate purposes for collection, as well

as for disclosure.

Greg

On Fri, Jan 20, 2017 at 7:02 PM, Stephanie Perrin <

stephanie.perrin@mail.utoronto.ca> wrote:  

I filled it out, but I am afraid for most of the purposes I could not

agree.  We do not *collect *data for many of those purposes.  We disclose

it to people for those purposes, but the purpose of collecting those data

elements is not for tax collection, trademark enforcement actions, etc.

This is the conflation issue I have raised repeatedly.

Apologies if I did not make that point clear enough on the call.

Stephanie Perrin

On 2017-01-20 17:35, Gomes, Chuck wrote:

Please note that our current poll ends in about 24 hours.  So far only 16

people have responded.

Chuck

*From:* gnso-rds-pdp-wg-bounces@icann.org [mailto:gnso-rds-pdp-wg-

bounces@icann.org <gnso-rds-pdp-wg-bounces@icann.org>] *On Behalf Of *Lisa

Phifer

*Sent:* Wednesday, January 18, 2017 1:50 PM

*To:* RDS PDP WG <gnso-rds-pdp-wg@icann.org> <gnso-rds-pdp-wg@icann.org>

*Subject:* [EXTERNAL] [gnso-rds-pdp-wg] Now open: 18 January Poll on

Purpose

Dear all,

As directed in the 18 January WG call, this week's new Poll on Purpose is

now open for WG member participation:

https://www.surveymonkey.com/r/SZX9QJZ

A PDF of this poll's questions and notes/recordings of the meeting are

posted on the 18 January meeting page: https://community.icann.org/x/

EbTDAw

This poll will close at *COB Saturday 21 January 2017*.

All WG members are encouraged to participate in this poll to help advance

deliberation and prepare for next week's meeting.

Best regards,

Lisa

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